National Center for Toxicological Research and AFGE Local 3393 (Authority decision, November 20, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on exceptions to an arbitration award. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to an Authority order involving an arbitration award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

Employees challenged a coworker's selection for a position at the National Center for Toxicological Research, alleging that his earlier detail gave him an unfair advantage. The arbitrator found no substantial link between the detail and selection but ordered the coworker's personnel records changed to show a temporary promotion. The Authority set aside the award. It found that the arbitrator had decided a recordkeeping issue beyond the question the parties submitted and had granted relief to an employee who had not grieved.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Award set aside.
• Key point: An arbitrator cannot decide an issue outside the parties' submission or award relief to an employee who did not grieve.

Full text (FLRA public release)

[ v20 p692 ]

20:0692(81)AR

The decision of the Authority follows:

20 FLRA No. 81

NATIONAL CENTER FOR
TOXICOLOGICAL RESEARCH,
JEFFERSON, ARKANSAS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3393, NCTR
JEFFERSON, ARKANSAS
Union

Case No. 0-AR-984

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Joe D. Woodward filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

According to the Arbitrator, this case arose when John Honeycutt, a mechanic with the Activity, was detailed from January to November 1984 to perform computer programming duties. During August 1984, the Activity advertised an opportunity for an assistant planner and estimator. John Honeycutt and seven other employees applied for the position, and all were placed on the best qualified list. John Honeycutt was selected for the position and the seven other employees filed a grievance protesting the selection that was ultimately submitted to arbitration. The parties stipulated the issue for resolution by the Arbitrator as whether the Activity violated the collective bargaining agreement, law, or regulation when it detailed John Honeycutt improperly to an unclassified position which gave him preferential treatment over other employees for the position of assistant planner and estimator and, if so, what shall be the remedy. In this respect the Arbitrator stated that the burden in this case was clearly on the Union to prove that but for any improper action in the wrongful detail of John Honeycutt, he would not have been selected for the position. After considering the evidence presented, the Arbitrator determined that the Union failed to meet its burden and that there was no substantial connection between the detail and the selection. However, the Arbitrator proceeded to rule that the agreement had been violated by the improper detail of John Honeycutt. Accordingly, the Arbitrator sustained the grievance and ordered that personnel records be amended to show that John Honeycutt was temporarily promoted instead of being detailed during the period of time in question.

In its exception the Agency essentially contends that the Arbitrator decided an issue not submitted and ordered relief that was not requested by the Union, discussed at the hearing, or provided for by law or the collective bargaining agreement.

The Authority has clearly indicated that an award may be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted, e.g., Federal Aviation Science and Technological Association, Local No. 291, Fort Worth, Texas and Federal Aviation Administration, Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas, 3 FLRA 544 (1980), or awards relief to persons who did not file grievances on their own behalf or who did not have the union file grievances for them, e.g., American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 15 FLRA No. 76 (1984). In terms of this case, the Authority concludes that the Agency has substantiated that the issue as stipulated by the parties for resolution pertained solely to whether John Honeycutt improperly gained preferential treatment over the grievants for the assistant planner position as the result of his detail. Thus, the Authority finds that the Arbitrator exceeded his authority by deciding an issue not presented to him when he considered the issue of the proper recordation of the detail of John Honeycutt. The Authority further finds that by ordering that personnel records be amended to show that John Honeycutt was temporarily promoted, the Arbitrator exceeded his authority by awarding relief to an employee who did not grieve and who did not have the Union file a grievance for him. See, e.g., id.; Robins AIR FORCE BASE, WARNER ROBINS, GEORGIA AND American Federation of Government Employees, AFL-CIO, Local 987, 18 FLRA No. 104 (1985).

Accordingly, the award is set aside.

Issued, Washington, D.C., November 20, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY